Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 1165 (ALL)

RAM NATH GUPTA v. PRESCRIBED AUTHORITY

2000-09-06

R.D.SHUKLA

body2000
R. D. SHUKLA, J. ( 1 ) THE petition has been filed for a writ of certiorari to quash the judgment and order dated 26. 5. 2000 passed by Prescribed Authority, district Unnao, permitting repairs of the shop to the tenant opposite party No. 2 of this petition. ( 2 ) THE aforesaid tenant opposite party No. 2 filed an application before the Prescribed Authority for permission to undertake repairs of the shop in his tenancy on the ground that the landlord petitioner failed to carry out the repairs. The tenant contended that requisite notice was served on the landlord for conducting the repairs. No repairs were made by the landlord hence an application for permission, before the Prescribed Authority, was moved. ( 3 ) THE Prescribed Authority, namely, the Court of Civil Judge (Senior Division), district Unnao, after hearing the parties and on consideration of the material on record passed the impugned order directing the landlord to conduct the repairs of the shop, detailed in the order within three months of the same failing which the tenant was entitled to make repairs at his expenses. The details of the said expenditure of the said repairs was to be filed before the said Prescribed authority and it would be adjusted in the rent payable to the landlord. ( 4 ) COUNTER-AFFIDAVIT was filed against this petition by the tenant opposite party No. 2 rebutting the contentions raised in the petition. ( 5 ) HEARD learned counsel for the petitioner and opposite party No. 2. ( 6 ) LEARNED counsel for the petitioner contended that the Prescribed Authority did not record any finding regarding service of the statutory notice on the petitioner before permission for repairs was granted to the tenant. ( 7 ) SUB-SECTION (1) of Section 28 of U. P. Urban Buildings (Regulation of Letting, Rent and eviction) Act. 1972, (hereinafter referred as U. P. Act No. 13 of 1972), prescribed that in case landlord failed to carry out whitewashing or repairs as required by sub-section (2) of Section 26, the tenant may by notice in writing, call upon him to carry out the same within one month from the date of service of such notice and in case the landlord fails to comply with said notice legal options permissible under aforesaid Section 28 might follow. The contention of the petitioner is that no finding was recorded by the Prescribed Authority that such a notice was served on the landlord before one of the legal options available under Section 28 was opted by the tenant when the application for permission of the Prescribed Authority, to make repairs in the tenanted portion, was moved. The Prescribed Authority in its Judgment dated 26. 5. 2000 merely reproduced the pleadings of the parties regarding the said notice but has not recorded a finding as to whether such a notice was served on the landlord or not as required under Section 28 of the U. P. Act No. 13 of 1972. ( 8 ) IN Kanhaiya Lal Rakesh v. Prescribed Authority, Aligarh and another, 1981 ARC 38, it was considered as to whether notice has been given by the tenant and was received by the landlord and it was a question upon which depended the maintainability of the application under Section 28 (4) of U. P. Act No. 13 of 1972 and when an objection was raised. It was incumbent upon the prescribed Authority to have applied its mind to the pleadings of the parties and the evidence available on the record and in case no such finding was recorded after application of the mind then the matter should be sent back to the Prescribed Authority for proper decision of the application under Section 28 (4) of the U. P. Act No. 13 of 1972. ( 9 ) IN Panna Lal v. Prescribed Authority (Munsif), Ghaziabad and another, 1984 ALJ 725, it has been considered that right to make repairs cannot be exercised except as provided in law. For that the initial requirement is to send a notice to landlord calling upon him to carry out the repairs within one month from, the date of service of notice. There is no finding of the Prescribed authority that this notice was served. Without this finding, the application could not be allowed specially when petitioner had set up defence that no notice was received by him. There is no finding of the Prescribed authority that this notice was served. Without this finding, the application could not be allowed specially when petitioner had set up defence that no notice was received by him. ( 10 ) IN Mohd, Rqfiq v. Babu Ram and another, 1983 (2) ARC 183, it has been considered that according to the learned counsel for the petitioner service of notice, as contemplated under section 28 (1) of the Act, is a sine qua rion for making an application under Section 28 (4) of the u. P. Act No. 13 of 1972 and since the Prescribed Authority has not recorded any finding for this then its order deserves to be quashed. Reliance, in support of the aforesaid submission, has been placed on the decision of Ghan Shiyam Dass a. Hargovind Tamoli, 1976 (2) ALR 462, and as far as legal position goes no exception can be taken to the submission made by the learned counsel for the petitioner. Therefore, when the Prescribed Authority failed to record any finding regarding service of notice, as contemplated under Section 28 (1) of U. P. Act No. 13 of 1972 in its order dated 26. 5. 2000, the matter has to be referred back to him for reconsideration in accordance with law. ( 11 ) IT is settled legal position that for maintainability of a petition, under Section 28 of U. P. Act no. 13 of 1972, for undertaking repairs by tenant, a notice has to be served on the landlord and in case of dispute, the concerned Prescribed Authority has to record a finding as to whether such a notice has been served or not and that having not been done in this case, the impugned order is liable to be quashed. ( 12 ) FURTHER contention of the learned counsel for the petitioner is that the amount of repairs sanctioned in this case amounts to Rs. 5,000 and under the provisions of Section 28 (5) of U. P. Act No. 13 of 1972 the amount to be sanctioned is not to exceed the amount of two years rent payable by the tenant to the landlord. This aspect of the matter has also not been considered by the Prescribed Authority before grant of the amount of repairs. 5,000 and under the provisions of Section 28 (5) of U. P. Act No. 13 of 1972 the amount to be sanctioned is not to exceed the amount of two years rent payable by the tenant to the landlord. This aspect of the matter has also not been considered by the Prescribed Authority before grant of the amount of repairs. The Prescribed Authority, therefore, after hearing the parties counsel shall decide the question of amount of repairs if it considers necessary, in accordance with law. ( 13 ) IN the result, the writ petition succeeds. The orders dated 26. 5. 2000. passed by the Prescribed authority. District Unnao. In P. A. No. 9 of 1998. Vidya Shanker v. Ram Nath Gupta, are hereby quashed. The Prescribed Authority shall decide the matter afresh as directed above. The petition is finally disposed of with no orders as to costs. .